(dissenting). — r I cannot yield my assent to the conclusion reached by the majority. I am of the opinion that the amendment to section 20Yl of the Code, enacted by the Twenty-Seventh General Assembly, is in plain and palpable violation of those portions of the federal and state Constitutions prohibiting class- legislation, • and will in as brief a way as practicable state my reasons for so thinking. The general rules applicable to the' case are correctly stated in the opinion of the majority and need not be repeated. The difficulty arises in their application. The section before amendment read: “ Every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of the agents, or by any mismanagement of the engineers or other employés thereof, and in consequence of the willful wrongs, whether of commission or omission, of such agents, engineers or other employés, when such wrongs are in any manner connected with the use and operation of any railway on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding.” This statute merely does away with the common-law rule that the master is not responsible for the negligence of -a fellow servant engaged in the use and operation of a railroad, which results in damage to another employe injured, when his employment exposed him to the hazards of such use and operation. A cause of action is created in favor of a class of employés whose work exposes them to the perils peculiar to railroading. The legislation is not in the interest and for the protection of all railroad employés, but for one class of them, a mere fraction of the entire body. This was noted in Deppe v. Railroad Company, 36 Iowa, 52, where, in order to uphold the constitutionality of the law as it then stood, when as*385sailed as class legislation, the court limited the employes to those operating a railway, saying: “The manifest purpose of the statute was ta give its benefits to employes engaged in the hazardous business of operating railroads. When thus limited, it is constitutional; when extended further, it becomes unconstitutional.” The soundness of this decision was questioned in Malone v. Railway Co., 61 Iowa, 326, but it was approved in the same case, reported in 65 Iowa, 422, wherein it is said: “ To meet the objection that the act of 1862 created a rule of liability which was applicable to railroad companies alone, and did not affect other employes under precisely the same circumstances, and that it was, therefore, class legislation, and in violation of the state Constitution, the court in Deepe’s case construed the act as creating a remedy only in favor of that class of employes who were engaged in the hazardous business of operating railroads, and the correctness of the holding of that case on that question is not doubted.” See, also, Conners v. Railway Co., 111 Iowa, 381.
The same thought was expressed by the Supreme Court of Minnesota in Johnson v. Railway Co., 43 Minn. 222 (45 N. W. 156, 8 L. R. A. 419), where, speaking through Mr. Justice Mitchell, in referring to a previous case, declaring that a similar statute in that state must be construed as designed exclusively for the benefits of those who would in the course of their employment be exposed to the peculiar hazards incident to the use and operation of railroads, it said: “ If the distinction is to be made as to the liability of the employers and employes, it must be based upon a difference in the nature of the employment, and not of the employer. One rule of liability cannot be established for railway companies merely as such, and another rule for other companies under like circumstances and conditions. Neither would it relieve the act from the imputation of class legislation that it applies alike to all railroads. It has been sometimes loosely stated that special legislation is not class, ‘ if all per*386sons brought under its influence are treated alike under the same conditions.’ But this is only half the truth. Not only must it treat alike, under the same conditions, all who are brought ‘ within its influence,’ but in its classification it must bring within its influence all who are under the same conditions. Therefore, if the distinction is to be made between railway corporations and other employers as respects their liability to employés, it must be based upon some difference in the nature of the employment, and can only extend to cases where such difference exists.” In passing on a like statute in Chicago, Kansas & Western Railway Company v. Pontius, 157 U. S. 209 (15 Sup. Ct. 585, 39 L. Ed. 675), the Supreme Court of the United States based its approval of the decision of the Supreme Court of Kansas in the same case, reported in 52 Kan. 264, 34 Pac. 739, on the same ground, saying: “ The hazardous character of the business of operating a railroad seemed to call for special legislation with respect to a railroad corporation having for its object the protection of their employés as well as the safety of the public.”
As the fellow servant law applies only to a certain well-defined class of railroad employés and excludes all others, the majority are certainly mistaken in suggesting that the mere fact that the employer must be a railway company is controlling in the matter of classification. The reason for sustaining the original section, as seen, was thé hazardous employment of those for whose protection it was enacted. It operated upon all who might be injured while engaged in an occupation of peculiar peril. A right of action is given when, but for the statute, none would have existed. All other employés of the railroad companies are excluded from its operation. The difference in their situation was thought to be such as to warrant separate legislation applicable to one class and not to the other. In creating this new liability the Legislature guarded against its impairment by adding that “ no contract which restricts such liability shall be legal or *387binding.” This law stood on the statute book without any material change for thirty-six years. In the meantime causes of action created thereby were shielded by no protective legislation other than that accorded those arising otherwise or possessed by the class of railroad employes not exposed to the peculiar perils incident to the use and operation of railroads. Was there anything in the nature of this statutory right of action or the class of persons to whom it was made available which so differentiated it from other rights of action or from other classes of employes that separate and distinct legislation might be demanded for the protection of it or the class for whom it was created ? Certainly the origin of the right can furnish no sound reason for its separate classification. A cause of action is no more nor less sacred when created by statute than it would be had it existed at common law; and in order that legislation with respect thereto not applicable to other causes of action may be sustained there must be some ground for such discrimination. It is not enough that the amendment might have been permissible in the enactment of the original statute a third of a century ago. The conditions which will justify the separation of subjects into different classes for the purpose of legislation must have relation to the time when it is enacted. Otherwise the constitutional inhibition of class legislation may be defeated by a classification based solely on past events having no connection with the needs of the hour or the demands of the present generation. In State v. Garbroski, 111 Iowa, 496, the classification was condemned because it rested “ on a past and completed transaction having no relation to the particular legislation enacted. All citizens are divided,” said the court, “ into two classes — those who served in the army and navy thirty-five years ago, and all those who did not. In present conditions and circumstances, there are no differences between them in their relation to society and the administration of the law and other citizens of the state. . . . Equality in right, privilege, burdens, and protection is the thought running *388through the Constitution and laws of the state; and an act intentionally and necessarily creating inequality therein, based on no reason suggested by necessity or difference in conditions or circumstances, is opposed to the spirit of free government and expressly' prohibited by the Constitution.”
If there is some present difference between causes of action which arise by virtue of the statute enacted thirty-six years before any protection was attempted, ¿nd those arising in favor of other employes of a railroad company by virtue of those natural principles of justice which have been recognized for so long a time that the memory of man runneth not to the contrary, or if there is anything in the genesis of either, or if there are such distinctions between the classes of employes entitled thereto respectively, these have not been pointed out, and I assert, without fear of successful contradiction, they cannot be. ‘ True, a statute may be amended, and when this has been done it will be read with the amendment, and both construed prospectively as though they had been enacted at the same time. This, however, is merely a rule of construction. Endlich on Statutes, section 297. But this in no way obviates the fact that the amendment may constitute distinct and independent legislation, to be construed in connection with the. original only from the time of its adoption. Ely v. Holton, 15 N. Y. 595. Its validity must be determined as of the time of its enactment and in the. light of circumstances and conditions then existing, or, if not existing, then having relation to the present and to the particular legislation.
Let us examine this amendment, remembering that it is applicable to but the one class of employes. Eor convenience it may be set- out: “ Nor shall any contract of insurance, relief, benefit, or indemnity in case of injury or death, entered into prior to the injury, between the person so injured and such corporation, or any other persons or association acting for such corporation, nor shall the acceptance of any such insurance, relief, benefit, or indemnity by the *389person injured, his widow, heirs, or legal representatives after the injury, from such corporation, person or association, constitute any bar or defense to any cause of action brought under the provisions of this section; but nothing contained herein shall be construed to prevent or invalidate any settlement for damages between the parties subsequent to injuries received.” If this can be said to restrict in any way the liability of the company, it adds nothing to the original statute, for it declared any such contract invalid. But it purports to deal, not with the company’s liability, but with its enforcement. It relates, first, to an independent and different subject, namely, to contracts of “ insurance, relief, benefit or indemnity,” invalidating them as to both parties; and, second, to the remedy in declaring that acceptance of the above shall not operate as a bar or defense to an action for an injury suffered. The contract contemplated does not affect the liability of the railroad company. Its only relation to the original act is the fact that both concern the same class of employés. Nor does the portion with respect, to the acceptance of benefits in any way restrict the liability of the company. Donald v. Railway, 93 Iowa, 284. Its only relation to the statute as it stood is that it protects the cause of action thereby created from waiver involved in the election of remedies. That such election as between any insurance, relief, benefit, or indemnity that may be stipulated, and recovery of damages against the railroad company, is essential to avoid restricting its liability in violation of the original act, was pointed out in Donald’s case. The requirement of an election between remedies is not restrictive of the right to either, and the only effect of the second portion of the amendment is to declare that an election to take insurance, relief, benefits, or indemnity will not estop the injured party from availing himself of the other remedy; that is, prosecuting his cause of action against the company. In other words, this amendment has no connection with the original act, further than that it concerns the same class of employes *390and declares that a certain election of remedies shall not constitute an estoppel of the cause of action therein created.
I shall not stop to discuss whether these are so germane to the subject of the section of the Code before being amended as that the title to the amendment was sufficient. It is enough for present purposes that the amendment does not limit in any way, nor add to the duties imposed or liabilities created by that section. It merely accepts the classification of that statute as the basis of legislation upon different subject-matter, namely, contracts with reference to insurance, etc., and the effect of accepting thereunder as constituting an estoppel. Surely these are not so connected with the object and purpose of the original act that the amendment can be upheld because based on the classification there recognized. The subjects covered by the amendment are just as important to railroad employes not exposed to the peculiar hazards of operating trains, and precisely as applicable to their situation and condition. . Why invalidate insurance or relief contracts of the former and enforce those of the latter? Why.give effect to the acceptance of benefits by the latter as an estoppel against the prosecution of a cause of action against the employer, and not do so when the acceptance is by the former ? If there is “ some apparent natural reason, some reason suggested by necessity, by such-a difference in the situation and circumstances of the subjects placed in different classes as suggests the necessity or-propriety of different legislation with respect to them,” it has not been mentioned in the opinion of the majority. The fundamental defect in the amendment is that it does not bring “ within its influence all who are under the same conditions.” The conditions under which the injuries are received can have no bearing on the question as to whether one shall be bound by a waiver of his right to maintain his cause of action by reason of some contract of insurance, relief, benefit, or indemnity, and another shall not. Both stand in the same relation to the company. Notwithstand*391ing, this amendment declares with respect to the employe within the fellow servant act that receiving benefits of such a contract shall not be a bar to the maintenance of an action against the company, while receiving the benefits by a servant within the terms of that act may be a bar to any further recovery. There is no ground for thus discriminating between the employes of the same corporation, and such classification is arbitrary and unreasonable.
The facts of this case will very well illustrate the inequality of the law. The benefits of the defendant’s relief department are not restricted to any class of employes. All may become members. Nor are these limited to injuries for which the company might be liable. All manner of injury, as well as sickness, is included. “ In case of injury to a member, he may elect to accept the, benefits in pursuance of these regulations, or to prosecute such claims-as he may have at law against the company or any company associated therewith in the administration of their relief departments.” But acceptance of the benefits is made a bar to the maintenance of an action against the company, as is also the maintenance of such action a bar to any claim for relief. That is, a member must elect whether he will take the benefits stipulated by .the regulations of the department, or rely on redress in the courts for his injuries. The plaintiff, though he had contributed but 85 cents to the relief fund and had expressly agreed to all the conditions, accepted benefits to the amount of $492 andJ.$330 paid to his physicians, and then in disregard of said conditions instituted this action. As he had been exposed to the-peculiar hazards of railroading, taking this money did not bar his right to recover from the defendant, if the amendment to the statute is valid. Had he suffered like injury while engaged in some of the other employments of the company, the amendment would not apply, and under the decision in Donald v. Railway, 93 Iowa, 284, .election to take the benefits of the Relief Department would have been final, and he could not maintain the action. *392Is this equality before the law? The difference in the employments could byx no possibility furnish ground for a distinction. What difference can there be, when it comes to the matter of settlement of claims between one of the trainmen and the company, growing out of the alleged negligence of a co-employé in the train service, and the claim of a shopman, growing out of the negligence of the master or vice principal in that department ? None whatevei’, for the manner of the injury has no relation to the subjects touched by the amendment. Nor is fhere any very satisfactory reason for making such a law applicable to railroad companies, and not to manufacturing and other corporations within the state. It would not seem that there is anything peculiar about railroad companies which should deprive them or their employes of the advantage of contracts of insurance, .relief, benefit, or indemnity, in case of injury or death of their employes, when such advantage is accorded to other corporations and their employes in the adjustment of the claims between them.
The only difference which might support separate legislation which suggests itself is the public character of the common carrier and the possible tendency of the Relief Department, by - obviating burdens involved, to lessen the vigilence and care of the railroads essential to the safety of the public. If this were so (and it is to be said that in so far as indicated by the record it is purely imaginary), it would furnish no ground for the distinction between employes of the same company. The safety of the public is quite as dependent on the diligence and foresight of the great body of men doing the work of railroads in positions not exposing them to the dangers of moving trains as of those who are thus exposed. The inclusion of railroad companies only in a class to be affectéd by statute has sometimes been upheld, not because the subjects to be affected are railroad companies, but owing to the character of their business, the peculiar nature of the risks included, or the nature of their property. Thus special laws with reference to the assess*393ment and taxation oí property have been sustained, owing to difference in the nature of railroad property. Taylor v. Secor, 92 U. S. 575 (23 L. Ed. 663); Pittsburg, C., C. & St. L. R. R. Co., v. Backus, 154 U. S. 421 (14 Sup. Ct. 1114, 38 L. Ed. 1031). An examination of the decisions generally will demonstrate that something more tangible "than a mere name, business, or purpose of a” corporation is exacted by the courts as a basis of classification. There must be some connection between the legislation and the subjects upon which it operates, and within the latter must be included all subjects in like situation and circumstances.
An instructive case is that of Gulf, Colorado & Santa Fe R. Co. v. Ellis, 165 U. S. 150 (17 Sup. Ct. 255, 41 L. Ed. 666). The Legislature of Texas had enacted a statute providing that where a claim in certain instances against a railroad company, not exceeding in amount $50, shall be presented to the company, supported by an affidavit, and if the company fail to pay the same within thirty days, a recovery may be had, and an attorney fee of $10 shall be “ assessed and awarded by the court or jury trying the issue.” This was denounced as class legislation, and the court, speaking through Mr. Justice Brewer, said:
No individuals are thus punished and no other corporations. The act singles out a certain class of debtors and-punishes them, when for like delinquencies it punishes no other. They are not treated as other debtors or equally with other debtors. They cannot appeal to the courts as other litigants under like conditions and with like protection. If litigation terminates adversely to them, they are mulcted in the attorney’s fees of the successful plaintiff; if it terminates in failure, they recover no attorney’s fees. It is no sufficient answer to say that they are punished only when adjudged to be in the wrong. They do not enter the court upon equal terms. * * * Before a distinction can be made between debtors, and one be punished for a failure to pay his debts, while another is permitted to become in like manner delinquent without any punishment, there must be some difference in the obligation to pay, some reason *394why the duty of payment is more imperative in the one instance than in the other. If it be said that this penalty is cast only upon corporations, that to them special privileges are granted, and therefore upon them special burdens may be imposed, it is sufficient answer to say that the penalty is not imposed upon all corporations. The burden does not go with the privilege. Only railroads of all corporations -are selected to bear this penalty. The rule of equality is ignored. It may be said that certain corporations áre chartered for charitable, educational, or religious purposes, and abundant reason for not visiting' them with a penalty for the nonpayment of debts is found in the fact that their chartered privileges are not given for á pecuniary benefit. . But the penalty is not imposed upon all business corporations or those chartered for the purpose of private gain. The banking corporations, the manufacturing corporations, and others like them are exempt. Further, the penalty is imposed not upon all corporations charged with quasi public duty of transportation, but only upon those charged with a particular form of duty. So the classification is not based upon any idea of special privileges by way of incorporation, nor for special privileges incurred thereby for purposes of private gain, nor even of such privileges granted for the discharge of one general class of public duties. * * * But, if the classification is not based upon the idea of special privileges, can it be sustained upon a basis of business in which the corporations to be punished are engaged? That such corporations may be classified for some purposes is unquestionable. The business in which they are engaged is of a peculiarly dangerous nature, and the Legislature, in the exercise of its police powers, may justly require many things to be done by them in order to secure life and property. Fencing of railroad tracks, use of safety couplers, and a multitude of other things easily suggest themselves. And any classification for the imposition of such special duties, duties arising out of the peculiar business in which they are engaged, is a just classification, and not one within the prohibition of the fourteenth amendment. Thus it is frequently required that they fence their tracks, and as a penalty for a failure to fence double damagés in case of loss are inflicted. Missouri P. R. Co. v. Humes, 115 U. S. 512 (6 Sup. Ct. 110, 29 L. Ed. 463). But this and all kindred cases proceed upon a theory of a special duty resting upon railroad *395corporations by reason of tbe business in which they are engaged,^ duty not resting upon others, a duty which can be enforced by the Legislature in any proper manner; and whether it enforces it by penalties in the way of 'fines coming to the state or by double damages to a party injured, is immaterial. It is all done in the exercise of the police power of the state and in view to enforce just and reasonable police regulations.
This decision is not impinged by what was.said in St. Louis, I. M. & S. R. Co. v. Paul, 173 U. S. 404 (19 Sup. Ct. 419, 43 L. Ed. 746), where an act of the General Assembly of Arkansas, requiring railroad companies,' upon the discharge of employes, to pay the wages due on the day of such discharge, and providing as a penalty for nonpayment that wages shall continue at the same rate until paid, but not longer than sixty days unless action is begun, was upheld as amendment of the railroad charter. See same case reported in 62 Am. St. Rep. 154, and note. ' The Ellis case was again adhered to in Atchison, T. & S. F. R. Co. v. Matthews, 174 U. S. 96 (19 Sup. Ct. 609, 43 L. Ed. 909), which construed a statute of Kansas declaring the setting out of fires in the operation of a railroad shall be prima facie evidence of negligence, and upon recovery authorizing the assessment of a reasonable attorney’s fee. This was justified on the ground that its purpose was to secure the utmost care on the part of the railroad companies to prevent the escape of fires from their moving trains. The distinction drawn between it and the Ellis case is rather hazy, and the denunciation of the statute as class legislation by Mr. Justice Harlan, in which three other justices concurred, seems unanswerable ; yet the classification, in any event, included all companies or individuals operating- trains. The Ellis case was again approved in Fidelity Mutual Life Ass’n v. Mettler, 185 U. S. 308 (22 Sup. Ct. 662, 46 L. Ed. 922), in which a statute of Texas enacting that life and health insurance companies, upon failure to pay losses within the time speci*396fied in their policies after demand made, shall pay the beneficiaries, “ in addition to the amount of the loss, 12 per cent, damages on the amount of such loss, together with all reasonable attorney’s fees for the prosecution and collection of such loss.” This was put on the ground, first, of the state’s power to impose conditions on its own and foreign corporations; and second, on the differences between life and health companies and .fire, marine, and inland insurance, and also, mutual benefit and relief associations, and “ the necessity of prompt payment in order to provide the means of living, of which the beneficiaries have been deprived by the death of the insured,” is emphasized.
■ In my opinion there is no way by which to uphold the ■amendment to section 20 Y1 of the Code without disregarding the Ellis case and ignoring the necessity of material differences between classes of individuals or corporations to justify the application of different laws thereto. Attention to the question involved in the concrete, rather than the ab- ■ stract, can lead to no other result. The amendment nullifies agreements of one class of employes of railroad companies and permits those of another to be enforced. A “ square deal ” would exact that all employes, be included and each be accorded the same protection by the law. It singles out for protection the claims of a part of those in the service of railroad companies and excludes from its benefits the claims of the remainder and of all employes in the service of all other corporations in like - situation. The courts are open to the favored class, notwithstanding any contract of insurance, relief, benefit, or indemnity, and acceptance thereunder, but to all others they are closed. In the words of Mr. Justice Brewer, “ they do not enter court on equal terms.” What I object to is the discrimination by this statute between men when there is no. basis .for such discrimination. All in like situation should stand equal before the law. No favoritism should be tolerated. If it is a good law for an employé who operates an engine, it is equally good for the dispatcher who *397directs the movement of engines and trains. If its enactment is essential for the protection of the brakemen from undue pressure from their employer, it is equally essential to shield the trackmen from the same influence. There is nothing in the situation of the one which will justify extending the protection of a statute like that under consideration for his benefit and denying such protection to the other. “ The true principle requires something more. than a mere designation by which such ' characteristics as will serve to classify, for the characteristics which thus serve as a basis of classification must be of such a nature as mark the object so designated as peculiarly requiring exclusive legislation. There must be some substantial distinction having referrence to the subject-matter of the proposed legislation, between the objects or places embraced in such legislation and the objects and places excluded. The marks of distinction on which the classification is founded must be such, in the nature of things, as will in some reasonable degree at least account for or justify the restriction of the legislation.” State’ v. Hammer, 42 N. J. Law, 439. The fourteenth amendment to the Constitution of the United States prohibits the denial to any person within its jurisdiction the equal protection of the .lays. The sixth section of article 1 of the Constitution of this state exacts that all laws shall have a uniform operation, and that privileges and immunities shall not be granted to any citizen or class of citizens which upon the same terms shall not equally belong to all citizens. These provisions of the fundamental law, denouncing discrimination, should not he frittered away. Their importance in guarding against the segregation of society into classes, and in assuring to all citizens that equality before the law which is essential to free government, cannot be overestimated. The constitutionality of this amendment cannot be sustained save by resort to refinements in distinction and sophistry in reasoning in which no court should indulge and which would be destructive of the above limitations on legis*398lative power. Nor these reasons I am of the opinion that the district court rightly held the statute invalid. So believing, it is unnecessary for me to consider whether it was also violative of a portion of the Constitution guarantying the freedom of contracts.
Since submitting the foregoing, the majority have added to their opinion a rejoinder, which may be responded to briefly. The assertion that anything which might have been included in the statute as originally enacted may be added by way of amendment is not borne out by the illustrations cited. Thus, in case of an exemption or homestead, it is quite as essential to the protection of the family that these be preserved as that they be granted, and hence protective measures enacted by way of amendment are supported by the same classification as the original act. The vice in the reasoning lies in the assumption that protective measures have been enacted and sustained regardless of any present requirement of conformation to the provisions of the Constitution. In every instance cited, the subsequent statute, if challenged, has been sustained because the class for which enacted was such as to render special legislation appropriate. If the doctrine asserted were to be accepted, all necessary in order to avoid the constitutional prohibition against class legislation would be the enactment of a law by way of an amendment to some former statute of ten years or a century ago, instead of a new and independent act. Lapse of time and changes in conditions cannot be thus obliterated in determining whether a statute is open to the charge of unjust discrimination, and no authority is cited so holding. No one questions the legislative power to abolish, take away, or modify statutory rights. All insisted upon is that in doing so the Legislature is not independent of or superior to the Constitution, but must accomplish this in the way exacted by that instrument. Here is a cause of action created by statute. It has stood, with respect to the remedy, for thirty-six years on precisely the same footing as other causes of action, exist*399ing or created before or since. After the lapse of that time it is amended. The liability created by the original statute must not be confused with the remedy which is sought to be affected by the amendment. The liability arises upon the happening of the injury. The amendment does not purport to change it in any way. It in no way restricts the liability previously created. It adds nothing thereto. It relates solely to the remedy. Had it been enacted as part of the original act, it would have constituted a part of the right, and must have been upheld as valid; for, being part of the right created, the same classification of necessity would sustain it. See Major v. Railway, 115 Iowa, 309; Hawley v. Griffin, 121 Iowa, 667. But, as seen, this, remedy was not added until' long after the cause of action was created, and consequently did not become a part of the right. It was a distinct and independent provision for the protection of a particular cause of action, and can no more be upheld than had it related to any other liability created by statute or existing at the common law. Had the subject of its protection been some other liability of a railroad company or individual, no question could arise as to whether it should comply with the constitutional requirements of the uniformity and classification. Can it be that the mere fact alone that a liability has been created by statute will justify a separate and peculiar remedy not available to all persons in like situation? Such is the logical deduction from the opinion of the majority. The Legislature may look back one or one hundred years, and if, perchance, the cause of action had its origin -in a statutory enactment, it may be singled out for a special remedy, and this, regardless of its similarity with other causes of action, or the persons to be affected, or the changes wrought by lapse of time. I am not ready to indorse any such theory. I am unwilling to resort to any species of reasoning, having no substantial basis, in order to avoid the clauses of the Constitution denouncing unjust discrimination.
Believing that the amendment to the statute is in conflict *400with the requirements of the Constitution, I am of opinion that the judgment of the district court so declaring should be affirmed.